Senate Bill S856

                                 BILL NUMBER:  S856

 TITLE OF BILL :
An act to amend the general obligations law, in relation to landowner
liability


 PURPOSE :
This bill would enhance the availability of recreational activities on
undeveloped lands by clarifying the provisions of the General
Obligations Law (GOL) relating to landowner liability for providing
public access for recreational activities.

 SUMMARY OF PROVISIONS :
Section 1 of the bill would amend GOL §9-103 to provide that owners,
lessees and occupants of premises owe no duty of care: (i) to keep
their premises safe for passage over by persons engaging in specific
recreational activities; and (ii) to persons engaging in any
recreational use on the premises. Also, the bill would provide that
persons, organizations and entities who maintain recreational trails
and other recreational facilities owe no duty of care to members of
the public who use such trails and facilities.

Section 2 provides that the bill would take effect immediately.

 EXISTING LAW :
              

GOL §9-103 provides that owners, lessees and occupants of premises owe
no duty of care to keep their premises safe for entry for persons
engaging in specific recreational activities, including hunting,
fishing, organized gleaning, canoeing, boating, trapping, hiking,
cross-country skiing, tobogganing, sledding, speleological activities,
horseback riding, motorized vehicle operation for recreational
purposes, snowmobile operation, cutting or gathering of wood for
noncommercial purposes or the training of dogs.

 JUSTIFICATION :
Since 85 percent of New York State is privately-owned, many people
rely on private landowners for access to the State's varied outdoor
recreational opportunities.  Landowners would be more receptive to
opening their lands for public recreational use if they believed that
they would not be subject to liability for doing so. Recreational
activities can pose a risk to the participant either because of the
very nature of the activity or because of the character of the natural
surroundings in which the activity takes place. Accordingly,
individuals have been injured due to their failure to recognize the
inherent risks associated with such activities. Certain activities
have been foreclosed to the public because of the fear of liability or
the cost of insurance to be borne by the landowner in order to
mitigate such liability. In order to promote the availability of
recreational opportunities, the liability of landowners is limited in
GOL §9-103.

GOL §9-103, commonly referred to as the Recreational Use Statute,
affords landowners immunity from liability based on a failure to keep
premises safe for entry and use by others for specific recreational
activities, including: hunting, fishing, organized gleaning, canoeing,
boating, trapping, hiking, cross-country skiing, tobogganing,
sledding, speleological activities, horseback riding, motorized
vehicle operation for recreational purposes, snowmobile operation,
cutting or gathering of wood for noncommercial purposes or the
training of dogs. This statute is a complete affirmative defense to
claims of ordinary negligence brought against a landowner by someone
engaged in one of the listed activities. However, one of the concerns
for landowners is that this list does not encompass all possible
recreational activities for which a landowner may make their land
available to the public, and therefore raises the question of whether
the landowner is immune from liability for injury upon a person
engaging in a recreational activity not expressly identified in the
statute. For example, because hiking is a covered activity but walking
is not, in order to determine the applicability of the statute, the
courts have attempted to distinguish between two activities that are
essentially the same. This bill would address this incongruity by
including all recreational activities in GOL §9-103.

In addition, this bill would clarify that property owners would be
protected if they allow individuals to pass over their land in order
to participate in a recreational activity. For instance, as the
statute currently states, a court may find it does not have sufficient
statutory guidance to determine whether traversing property in order
to engage in hunting or fishing activities, which clearly fall under
the protections afforded by GOL §9-103, is afforded the same
protection by the statute. This bill, by specifically providing
protection to landowners who allow persons to traverse their property,
would allow hunters and anglers access to public or private lands
where angling and/or hunting is allowed, and would increase angling
and hunting opportunities on parcels of land that are currently
landlocked by surrounding properties where hunting and angling may not
be available to the public.

Finally, this bill would clarify that organizations that maintain or
develop trails and other recreational facilities are covered as
occupants of the land, even though they may not have an ownership
interest or exclusive license to operate the land or have any
authority to exclude use of the land by others. These groups, however,
have permission of the landowner to maintain the trails or other
recreational facility. Courts have held that if an entity had an
authorized presence on the property, it is deemed an occupant of the
property within the meaning of the Recreational Use Statute. See:
 ALBRIGHT V. METZ , 88 N.Y.2d 656 (1996) and  WELLER V.  COLLEGES OF
SENECAS , 261 A.D.2d 852 (4th Dept. 1999).  This bill is intended to
prevent claims of negligent maintenance made against recreational
groups who develop and maintain recreational trails for use by the
broader public. Without the involvement of these volunteer
not-for-profit recreational groups, the quantity and quality of
recreational trails and recreational facilities open to the public
would be compromised. It is important that these groups should not be
exposed to claims for negligent maintenance in order to ensure the
continued availability of recreational trails and facilities.

This bill, by expanding and clarifying liability protections in GOL
§9-103, will limit the number of lawsuits initiated against landowners
who open their lands to the public and against recreational groups who
develop and maintain trails and facilities for public use. In turn,
such protection will result in additional opportunities for
recreational pursuits on private lands, including activities currently
not enumerated in statute, as well as enumerated activities such as
fishing, hunting and trapping.

 LEGISLATIVE HISTORY :

2007-08: S.4263
2006: S.8188 - Passed Senate

 FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
This act shall take effect immediately.